RE MATHARU JASPREET SINGH

CACV 432/2022

[2023] HKCA 199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 432 OF 2022

(ON APPEAL FROM HCAL 2526/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 25 October 2022 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 5 November 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 8 March 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India. He entered Hong Kong illegally on 17 April 2015, and surrendered himself to the Immigration Department on 5 May 2015.  He thereafter raised a non-refoulement claim on 31 July 2015.

3.  The applicant’s claim was based on a fear of being harmed or killed by his paternal uncle by reason of a land dispute.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 8 March 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was fixed on 18 July 2018 and adjourned to 12 September 2018.  The Board found, on the facts and evidence, that the applicant had fabricated his claims and fear of harm.  The applicant’s appeal was dismissed by the Board’s decision dated 5 November 2018 (i.e. the Board’s Decision).

The Judge’s decision

6.  The applicant filed a Form 86 on 12 November 2018 seeking to judicially review the Board’s Decision but did not set out any grounds for review.

7.  In his supporting affirmation filed on the same date, the applicant deposed:

“I can’t go back to my country at this moment because my life is not [safe] in my country. Please help me to stay in Hong Kong until I have problem.”

8.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [19] of the CALL-1 Form: 

“13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.(1) …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

16. There is no valid reason from the applicant to challenge the Board’s Decision.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.”

Grounds for appeal

9.  In the Notice of Appeal filed on 31 October 2022, the applicant stated:

“I would like to request the Court could you please [save] my life’s my life will be danger if I return go back to my home country.”

10.  In his supporting affirmation filed on the same date, the applicant asked this court to “consider [his] real situation”.

11.  In his written submissions dated 14 November 2022, the applicant repeated his disagreement with the Board’s Decision, and complained, inter alia, that the Board failed to “make sufficient enquiry before finalising the decision” and that the Judge “refused [his] judicial review application without oral hearing”.

12.  We heard the appeal on 1 February 2023.  The applicant appeared at the hearing but had nothing to add to the matters already stated in his Notice of Appeal, affirmation and written submissions.

Discussion

13.  The applicant has in his Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has failed to do so.

14.  As to the applicant’s complaint that there was no oral hearing before the Judge, we note that in fact he did not request an oral hearing (see [2] of the CALL-1 Form).  The Judge was therefore entitled to deal with his leave application on the papers, pursuant to Order 53 rule 3(3) of the Rules of the High Court (Cap 4A).  There is thus no substance in this complaint.

15.  In any event, in the application in the court below, the applicant provided no particulars as to any respects in which the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

16.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

17.  We are also not persuaded by the applicant’s complaint that the Board failed to make “sufficient enquiries” with him before it reached its Decision.  The applicant attended the oral hearing before the Board, during which he had the opportunity to make full submissions, if he wished to, before the Board proceeded to reach a conclusion on his appeal.  We also note that apart from hearing from the applicant, the Board also had regard to the evidence before it, including the relevant Country of Origin information, before reaching its Decision.

18.  For the above reasons, there is no merit in the appeal and we dismiss the appeal accordingly.